August 20, 2009

Rehnquist Papers: White House Wanted Publicity on Thomas Oath-Taking

When new Justice Sonia Sotomayor was sworn in at the Supreme Court Aug. 8, we wrote about the Court's mostly quiet campaign to have such ceremonies at the Court, not the White House. Justices have been concerned that swearing in justices at the White House sends an inappropriate message that justices are like political appointees or Cabinet members who are beholden to their president. According to correspondence found in Thurgood Marshall's papers at the Library of Congress, it became an issue in 1991 when the first Bush White House wanted to have Clarence Thomas sworn in there, and several justices tried to devise ways of keeping it at the Court.

The same correspondence is in the Rehnquist papers just released at the Hoover Institution Archives, and it underscores the importance that several justices -- especially John Paul Stevens -- placed on the issue. (It's worth noting that for Sotomayor, separate from the oaths, the White House staged a public celebration of her achievement at the White House Aug. 12, and Stevens attended.)

A new memo in the Rehnquist papers, apparently released for the first time, tends to confirm the concerns the justices had. On Oct. 2, 1991, the chief justice's administrative assistant Robb Jones informed Rehnquist of a conversation he had with associate White House counsel Lee Liberman. "She said that the White House wanted the ceremony there, since 'you don't have television,'" Jones reported to Rehnquist. "I reiterated the [Court's] sentiment that one ceremony be held at the Court and mentioned the date we were targeting. She appreciated the information, but said words to the effect that the White House could not pass up the opportunity to get some publicity out of the confirmation."

The files do not contain further information about negotiations that may have ensued, but Thomas was given his constitutional oath at the White House Rose Garden on Oct. 18 before a national television audience. On Oct. 23, Rehnquist gave Thomas the judicial oath in a more private ceremony at the Court. The judicial oath was repeated during a formal investiture ceremony at the Court on Nov. 1.

UPDATE: Lee Liberman Otis, reached for comment today, said "I don't recall the specific conversation at all," adding, "I doubt I would have put it the way he put it."